Home Advice & informationMaternity Leave Pregnancy and Maternity Discrimination: Frequently Asked Questions

Pregnancy and Maternity Discrimination: Frequently Asked Questions

 

  • What is pregnancy and maternity discrimination?

It is unlawful for your employer to treat you unfavourably because you are pregnant or on maternity leave.  Pregnancy and maternity discrimination occurs if you are treated unfavourably:

  • because you are exercising or seeking to exercise, or have exercised or sought to exercise, the right to maternity leave; or
  • during the protected period (see below), because of your pregnancy or because of an illness suffered by you as a result of your pregnancy (even if the actual unfavourable treatment occurs after the protected period, if the decision was taken during the protected period, it will be deemed to have occurred during the protected period).

What is the protected period?

The protected period begins when your pregnancy begins and ends either:

  • where you have a right to maternity leave, at the end of the maternity leave, or when you return to work after the pregnancy (if earlier); or
  • where you do not have the right to maternity leave, two weeks after the end of your pregnancy.

To see whether you would have a right to maternity leave visit our section on maternity leave.

 

  • How do I prove pregnancy or maternity discrimination?

The test for deciding whether you have been discriminated against because of your pregnancy or maternity will be whether you have been treated unfavourably because of:

  • your pregnancy;
  • a pregnancy-related illness;
  • you being on compulsory maternity leave; or
  • because you are exercising or seeking (or have) the right to maternity leave.

For you to show this type of discrimination there is no need for a comparator – i.e. no need for you to show that you have been treated less favourably than another person.

Examples of unfavourable treatment might include:

  • making something more difficult for you to achieve than would normally be the case;
  • creating a particular difficulty for you;
  • disadvantaging you;
  • putting you in a worse position than someone else;
  • demotion;
  • dismissal;
  • denial of training or promotion opportunities.
  • Someone is treated unfavourably if they are not in as good a position as others generally would be.

 

  • What if my employer doesn’t know that I am pregnant?

If your employer does not know that you are pregnant you cannot be a victim of pregnancy discrimination.  However, if your employer believes or suspects that you are pregnant, even if that is through rumour, they could be treating you unfavourably because of your pregnancy or an illness suffered as a result of your pregnancy.

We recommend that you consider telling your employer as early as possible about your pregnancy if you want to be protected from pregnancy and maternity discrimination.  See our section on telling your employer you are pregnant.

 

  • Can I be refused a job because I am pregnant?

No.  If you are refused a job because you are pregnant this would be pregnancy discrimination.

 

  • What can I do if I believe I am being discriminated against?

You should first try to resolve the problem informally.  If this doesn’t work you should begin a grievance following your employer’s grievance policy and procedure.  See our section on    what to do if you are having problems at work.

If this does not resolve the matter you could bring a claim in the employment tribunal for pregnancy and maternity discrimination.

See our section on starting a claim for further information.

 

  • What if I think I have been discriminated against after the protected period has expired?

You are entitled to specific protection from unfavourable treatment from your employer in relation to the “protected period”. Any such treatment will be unlawful. The protected period begins at the start of your pregnancy and usually ends at the end of your maternity leave. It does not continue into any period of annual leave which you have used to delay your return date.

If the protected period has expired but you think you have been treated less favourably because of your pregnancy or maternity leave, this may amount to pregnancy/maternity or sex discrimination, depending on the circumstances.  For example, if a decision was taken (for example, to dismiss you because you have taken maternity leave) during the protected period, but carried out afterwards it may still be maternity discrimination.  If the unfavourable treatment is decided on after your return from maternity leave, for example to demote you because you did not attend a training (as you were on maternity leave), then you may need to claim sex discrimination instead, but you would need to compare your treatment with a man who had also missed training.

A tribunal found that dismissing a woman for sickness absence due to post natal depression which occurred after the end of maternity leave did not amount to pregnancy/maternity discrimination – post natal depression should be treated the same as other sickness absence once the protected period is over.

You should contact us for further advice if you think discrimination has occurred after the protected period.

 

  • I am an agency worker; can I claim maternity discrimination against both my agency and the company they sent me to?

Agency workers have some of the same rights as other workers, such as the right not to be discriminated against because of pregnancy.   You should not be treated less favourably, or refused work, because:

  • You are pregnant.
  • You have given birth in the last two weeks if you are not entitled to maternity leave.
  • You have given birth in the past year if you are entitled to maternity leave.
  • You have tried to assert one of your legal rights, such as the right to time off for ante-natal care or the right to a health and safety assessment.

Both the agency you work for and the company where you are working are under a duty not to discriminate against you. However, in order to be able to claim discrimination, you will have to tell your recruitment agency and the company you are working for about your pregnancy.

See our section on Agency Workers for further information.

 

  • I am self-employed, can I claim maternity discrimination?

No, but If you work for other companies as a contractor, you are still protected by sex discrimination law, and if you are not being offered work because you have taken time off to have a child, you may have a sex discrimination claim.

 

  • If my partner is being treated badly by their employer, can they claim pregnancy or maternity discrimination?

It is likely that only pregnant women can claim pregnancy or maternity discrimination.  However, your partner may have a claim for direct sex discrimination, pregnancy or maternity discrimination by association or unfair dismissal.

 

  • Can I request time off for antenatal appointments?

Yes.  Pregnant employees (and agency workers who have met certain service requirements) have a statutory right to paid time off during working hours for the purposes of receiving antenatal care, regardless of hours worked or length of service.

Your employer may request proof of appointment which you must provide, although they cannot ask for proof of your first appointment.

Failure to allow time off for antenatal appointments may be pregnancy and maternity discrimination. See our section on time off for antenatal appointments for more information.

 

  • Health and safety: I’m pregnant or breastfeeding, should my employer do a health and safety assessment?

Employers are obliged to assess health and safety risks to which their employees might be exposed while at work.   If they employ women of child-bearing age and the type of work could involve a risk to the health and safety of a new or expectant mother or her baby, they must include a specific assessment of those risks in the overall assessment.

You should tell your employer that you are pregnant or breastfeeding and, if there is any evidence of a risk to you or your baby, an individual risk assessment should be carried out  If a risk is revealed, your employer must do all that is reasonable to remove or prevent it.   If your employer cannot resolve the risk they must look for suitable alternative employment for you, at the same pay and conditions.  If there is no way you can work safely, you are entitled to be suspended on full pay.

Failure to undertake a risk assessment or act on findings may constitute pregnancy and maternity discrimination.  See our sections on health and safety rights for pregnant women and for new and breastfeeding mothers.

Employers are required to provide suitable facilities for breastfeeding mothers to rest (including facilities to lie down), although they are not required to provide facilities to breastfeed itself.  The toilets are not “suitable facilities”.

 

  • Can I be made redundant during pregnancy?

Yes.  Also, unlike women on maternity leave, pregnant women who have not yet started maternity leave have no special protection in a redundancy situation.  However, the redundancy selection criteria must not take into account reasons connected to pregnancy (including pregnancy-related illness) or maternity leave. If you believe you have been selected for redundancy because you are pregnant or have a pregnancy-related illness, you may have a claim for pregnancy and maternity discrimination.

See our section on redundancy generally, for more information.

 

  • Can I be made redundant during maternity leave?

Yes.  However, women on maternity leave have priority for alternative employment in redundancy cases.

As for redundancy during pregnancy, the redundancy selection criteria must not take into account reasons connected to pregnancy (including pregnancy-related illness) or maternity leave.

See our section on redundancy while on or shortly after maternity leave for more information.

 

  • What do I do if I am made redundant before I return to work but after the end of my maternity leave?

You are entitled to additional protections where your job becomes redundant during maternity leave (and similar protections apply during shared parental leave).

When your maternity leave ends, you will not benefit from these extra protections. However, the redundancy may amount to direct or indirect sex discrimination depending on the circumstances. For example, if the redundancy selection criteria penalise you for having been absent while you were on maternity leave, this is likely to amount to indirect sex discrimination.

 

  • Can I be dismissed during pregnancy?

It can be legal to dismiss you during pregnancy – the normal rules of dismissal apply, but the dismissal must not in any way be related to your pregnancy or intention to take maternity leave. A dismissal because of pregnancy, pregnancy related sickness, birth or maternity leave is an automatic unfair dismissal, however long you have been in employment.  If you are dismissed while pregnant (or on maternity leave) you must be given written reasons for the dismissal.  See our section on dismissal during pregnancy, maternity leave or soon after for more information.

 

  • Can I be dismissed during maternity leave?

It is not unlawful to dismiss a woman while she is on maternity leave, but if you are dismissed because of pregnancy, birth or maternity leave you may have a claim for automatic unfair dismissal and pregnancy or maternity discrimination. You are entitled to written reasons for the dismissal and to be paid for any outstanding holiday pay that has accrued during your maternity leave up to the end of your notice period.   See our section on dismissal during pregnancy, maternity leave or soon after for more information.

If you are dismissed during maternity leave you are still entitled to receive Statutory Maternity Pay or Maternity Allowance for the full period, but if you get notice pay your employer may deduct maternity pay for the same period from the notice pay.

 

  • Can I stay in touch with my employer during maternity leave?

Women on maternity leave are entitled (but not obliged) to go into work and be paid for up to 10 mutually agreed Keeping in Touch (KIT) days, without losing Statutory Maternity Pay or Maternity Allowance entitlement for those days. See our section what work can you do during maternity leave for more information.

At the end of your maternity leave, you have the right to return to your original job.  If this is not possible, a job on the same terms and conditions should be offered to you, unless there is a redundancy situation. See our section on returning to work at the end of the  maternity leave for more information.

 

This advice applies in England, Wales, Scotland and Northern Ireland. If you live in another part of the UK, the law may differ. Please call our helpline for more details.

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